29th March 2018
Your Will and LPAs – done properly
Occasionally our clients ask us about unregulated legal services providers. It may have been suggested to them that they do not need to see a solicitor to make a Will or Lasting Power of Attorney (LPA). Some may have even been told they could buy a pack and have a go at drafting the documents themselves! These could be advertisements on the TV or in newspapers or flyers.
We all know how important it is to make a Will. In doing so, you can:-
- be in control of who you wish to benefit. If you die without a Will, your estate may be distributed in a way you do not intend;
- choose executors to administer your estate and trustees to administer any resulting trust. And no, most people do not need to appoint a professional or company;
- choose guardians to look after your under-aged children;
- decide whether your children should inherit at a more mature age instead of at 18;
- provide for your partner even if you are unmarried;
- specify your wishes in respect of your funeral;
- specify your wishes in respect of your pets;
- leave your estate subject to as little tax as possible;and
- have peace of mind.
Whilst it is important to have a Will to ensure your estate passes in the way you intend when you die, it is equally important to put LPAs in place to cover your affairs whilst you are still alive.
There are two types of LPA:-
- Under a Property and Financial Affairs LPA you appoint one or more attorneys to deal with your financial matters for you. Whilst it can take effect immediately, more often it is put in place in case it is needed in the future, for example as a result of physical frailty, hospitalisation or mental incapacity. Some choose to put this LPA in place to cover themselves whilst they are on holiday or travelling for business purposes. Others just like to have the certainty that someone will be able to help, or step in, as and when necessary.
- Under a Health and Welfare LPA the appointed attorneys can make welfare and healthcare decisions on your behalf, (but only if you lose mental capacity) including decisions on the continuation of life-sustaining treatment,. People often assume that a “next of kin” (a term that is not legally defined) would have a right to be consulted by medical or care staff. Unfortunately, this is not the case unless the “next of kin” is also an attorney under this type of LPA.
Why you should see a Solicitor
So why then should you always consider speaking to a solicitor about making a Will or LPA?
Many providers of legal services refer to being lawyers or legal advisors or estate planners and that is because anyone can call themselves a lawyer. Only “solicitors” have to fulfil certain requirements, by law, in order to ensure that anyone using a solicitor has extra safeguards. Unfortunately for many, the view of the government seems to be that anyone using a non-solicitor has to accept the risks of doing so, even though they may not have been aware that was what they were choosing to do!
Unlike other legal services providers, solicitors are:-
- under a legal duty of care to act only in your best interests, not just to sell to you;
- trained to advise on all aspects of making a Will or LPA (and to an even higher degree if they also have the designation “TEP”)
- trained for 6 years before they even become solicitors and this training continues afterwards and covers many other aspects of law which may impinge on your decisions;
- regulated by the professional code of conduct established by the Solicitors Regulation Authority (which, unlike “subscription” regulators of companies is truly independent and has extensive powers);
- experienced in dealing with both straightforward and complex Will and LPA matters;
- insured to cover you, and your family - just in case something goes wrong, because even solicitors are only human.
Making your Will without the help of a solicitor can lead to mistakes being made, provisions in your Will being ambiguous, and could mean that your Will is invalid. Unlike many areas of law, problems with a Will generally come to light only after you die, when it is too late to correct it easily – and often too late to prove that an error was made. This makes it especially important to get it right first time.
At first sight, the process of preparing an LPA may seem straightforward, and the Office of the Public Guardian even encourages individuals to try out their new online service. However, in order to avoid any possible complications at a later date due to misspelt names, missing middle names, wrong addresses, wrong execution, or unclear wishes or, very commonly, the absence of suitable powers/restrictions on which we would advise, you should seek advice from a solicitor. They will then also be able to discuss other considerations with you, which may help you and your attorneys in the future.
Hauke Harrack, TEP, a solicitor in Hewitsons’ Private Wealth team, comments: “Here at Hewitsons everyone who prepares Wills or LPAs is a solicitor (or trainee solicitor) and in addition all our solicitors dealing with the preparation of Wills are members (or student members) of STEP, the Society of Trust and Estate Practitioners (designated “TEP”). As such they comply with the additional STEP Code for Will Preparation in England and Wales, setting out the standards of service a client can expect from a STEP member preparing their Will. Our solicitors are highly trained in advising clients on the various considerations that need to be taken into account.. This ensures that our clients’ Wills and LPAs will be prepared in the most professional manner and to the highest possible standard. Hewitsons has a long history of providing a true full service with specialists in all areas, and our solicitors advising on Wills and LPAs can draw on this expertise as appropriate when advising our clients.”
To view the STEP Code click here.
Download our Why make a Will information sheet which explains in more detail why you should make a Will.
Please click here if you would like Hewitsons to provide a fee estimate for preparing your Will.